Litigating at Light Speed
by Kendall Coffey
In this age of spiraling litigation and chronic court congestion, the concept of light speed litigation might seem oxymoronic to some. Frequently, litigants wait years before achieving a final litigated resolution. And many civil dockets have become legendary for difficulties in getting court time for anything more than a routine procedural hearing. Even in the domain of criminal cases, the constitutional guarantee of a truly speedy trial frequently seems more aberrational than operational.1
Even though frustrating for the public, snail-paced litigation does minimize the risk of ambush and maximize the potential for thoughtful adjudication while improving prospects for settlement along the way. And yet, the occasion arises when velocity is a necessity and litigants must eject from the comfort zone of painstaking preparation and confront drastic abbreviation of the usual deliberative processes. Ironically enough, the cases that permit minimal time are often not minimal cases. Extreme examples include election controversies, highlighted by the dizzying pace of the trial and appellate proceedings during the 2000 presidential recount litigation. Cases that are less momentous but also urgent for the litigants and their counsel range from trade secret injunctions and prejudgment attachments to emergency child support orders. Further, many trial court events that command instant litigation are followed by correspondingly fast appellate phases, which can, at times, outrace even an expedited trial court proceeding.
This article examines the legal and practical dynamics of litigating at light speed. Beginning with a basic overview of the procedural framework, this article then turns to examples of judicial accelerations that correspond to the imperatives of quick justice. (Some, but not all, of the practical considerations are reviewed, leaving to lawyers working around the clock the also relevant analysis of espresso coffees and other sleep deprivation strategies.)
The Legal Framework for Faster Tracks
The usual rules for trial court litigation do not, in the usual cases, provide for immediate results. While the federal and Florida rules of procedure proclaim a commitment to the “just, speedy and inexpensive determination of every action,” the word “speedy” is truly a relative concept. In fact, speed is often lost in the thicket of numerous other rules that dictate the ability to file dismissal motions before a case can be answered and the necessity of getting an answer filed, to bringing the case at issue before it can be set for trial.2 Once various months of discovery are added, few realistic timelines promise a civil trial within the year a case is filed.
Especially because such unhurried paces can often be protracted further by myriad time extensions and rescheduling, rapid fire methodologies might seem rare.3 But a number of energy sources can fuel the jet engines of certain categories of litigation.
- Injunctive Relief. One regular contributor to litigation late nights is the injunction that can be invoked within hours by an ex parte submission citing dire circumstances4 based on sworn factual statements5 and backed by a healthy bond to secure the opposing party from possible harm.6 Even if the ex parte submission is successful, there is usually no rest for the weary counsel. To the contrary, injunction rules guarantee the other party a virtually immediate opportunity to race into court for an evidentiary hearing, often resulting in a sprint through a mini-trial on core issues of the entire litigated controversy.7 Alternatively, if an injunction seeker opts to provide prior notice of hearing to the other side — a prerequisite unless prior notice would undermine the emergency relief being requested — the parties could proceed on an expedited track requiring an evidentiary hearing, sometimes within a few weeks, days, or even hours.
Whether proceeding at the outset through an ex parte application or by providing prior notice to the other side, the emergency injunction scenarios, therefore, require litigants to be prepared to try much of their case at the beginning of litigation rather than at its conclusion.